civ pro flashcards
Personal jurisdiction requires that the defendant be _____ to the forum state’s jurisdiction, and that the defendant be ______.
amenable; served with proper notice
Amenability to personal jurisdiction is governed by the ______, subject to the limits of the ______ of the United States Constitution
forum state’s law; due process clause
Pennoyer v. Neff described three bases for state jurisdiction over persons and things. They are
_____: jurisdiction over the person
_____: jurisdiction over interests in property
_____: jurisdiction over seized property, where plaintiff’s claim is unrelated to the seized property
In personam
in rem
quasi in rem
Pennoyer based its jurisdictional formula on ____ over persons and property within its borders
state power
Under Pennoyer’s in personam jurisdiction, a judgment in plaintiff’s favor
—would be _____ in all states
—for the ____ of damages
—may be ____ until fully collected
binding; full amount; enforced repeatedly
Under Pennoyer’s in rem jurisdiction, a judgment in favor of plaintiff
—affects ____ in a res (both ____ and ____ to the lawsuit)
—does not result in a _____
— does not require ____ outside the forum
everyone’s interests; parties and non parties
money judgment
enforcement
Under Pennoyer’s quasi in rem jurisdiction, a judgment in plaintiff’s favor: —entitles plaintiff to the \_\_\_\_ —is not a \_\_\_\_\_ —is not \_\_\_\_ —may not be \_\_\_\_\_ —may not be \_\_\_\_\_
property attached for jurisdiction
personal judgment
enforceable against any other property
enforced more than once
enforced outside the forum
Another type of jurisdiction not discussed in Pennoyer is ____, which involves the state’s authority to adjudicate such matters as divorce, adoption, citizenship and mental competence.
status
____ altered Pennoyer’s rule for personal jurisdiction, replacing the concept of ____ with the new standards of ___ and ___ provided by the “minimum contacts test.”
International Shoe Co. v. Washington
state power
reasonableness
fairness
The current test for amenability, following International Shoe and other cases, does not require the minimum contacts test if the defendant satisfies any one of the four “traditional” bases for in personam jurisdiction. Those bases are: \_\_\_\_\_ in the forum state \_\_\_\_\_\_ to jurisdiction \_\_\_\_\_ of objection to jurisdiction \_\_\_\_\_ in the forum when served
Residence
Consent
Waiver
Physical Presence
Consent to jurisdiction has two forms, ____ consent and ____ consent. ______ are an example of express consent, and ____are an example of implied consent.
express
implied
forum selection clause
non-resident motorist statutes
If none of the traditional bases are present, a state may only exercise in personam jurisdiction over defendants who have minimum contacts with the state. The two categories of minimum contacts are ____ and _____.
specific jurisdiction
general jurisdiction
______ relates to the nonresident defendant’s contacts with the forum state. _____ is where the lawsuit is unrelated to the nonresident defendant’s contacts with the forum state.
specific jurisdiction
general jurisdiction
Specific jurisdiction has four contacts tests, which are that the defendant
a. ______ itself of the benefits and protections of forum law;
b. should have ____ that its activity would subject it to jurisdiction in the forum state;
c. could _____ being haled into court in the forum state;
d. placed its product in the _____ and could foresee that it would be used in the forum state.
purposely availed
foreseen
reasonably anticipate
stream of commerce
General jurisdiction has one contact test, which is that it has_____ with the forum state.
continuous and systematic contacts
If the defendant has no contacts with the forum (and does not meet one of the four traditional bases of jurisdiction), then there is ___ over that defendant. If, on the other hand, defendant does have specific or general contacts, then the court must consider the ______ test. This is a ____ test with five factors, which are:
—______
—_____ interest in convenient and effective relief
—_____
—the ____ in furthering fundamental social policies
– _____ in effective resolution of controversies
no personal jurisdiction
fair play and substantial justice test
balancing
- burden on the defendant
- plaintiff’s
- the forum state’s interest
- the shared interests of several states
- judicial system’s interest
The due process requirement for notice to defendant is stated in Mullane v. Central Hanover. Notice is constitutionally sufficient if it is “____, under all circumstances, to apprise___ parties of the pendency of the action, and afford them an _____ and _____.”
reasonably calculated
interested
opportunity to appear
present objections
An abbreviated version of the Mullane notice rule is that ____ requires ___ and an ____.
due process clause
notice
opportunity to be heard
Which rule of the Federal Rules of Civil Procedure deals with initially notifying the defendant of the lawsuit?
Rule 4
Under Fed. R. Civ. P. 4, the two primary methods for service of process on a competent adult are:
a. ____ to defendant;
b. leaving copies at ____ with a person of _____.
personal delivery
defendant’s residence; suitable age and discretion
In most cases, the federal method of service on defendants outside the district is by the ___ statute of the state in which the federal court sits.
long arm
The purposes of venue rules are:
(a) _____ to defendant
(b) ______ of caseload within the forum state
fairness
geographic allocation
The federal statute for general venue provisions is _____
28 USC 1391
The purpose of forum non conveniens is ____ based on fairness and convenience.
to move cases from one forum to another
Subject matter jurisdiction refers to the court’s authority to adjudicate based on the ____ and in some cases, _____
type of case
dollar amount in controversy
Federal courts have subject matter jurisdiction over two types of cases:
federal question
diversity of citizenship
The statute dealing with general federal question jurisdiction is ___. It provides that federal courts have jurisdiction over any ____.
28 USC 1331
case or controversy arising under the Constitution, laws, or treaties of the United States.
In addition to the general federal question provisions in 28 U.S.C. § 1331, there are specific statutes on federal question jurisdiction, including actions against (name three):
patents
civil rights
consuls
Diversity jurisdiction is covered by ___. That statute provides that federal courts have subject matter jurisdiction over claims between ____, or between ____ and ____, where the amount in controversy _____.
28 U.S.C. § 1332 citizens of different states state citizens foreign citizens exceeds $75,000
Although the Constitution requires only ____ diversity, 28 U.S.C. § 1332 requires ___ diversity. This means that all plaintiffs must have different citizenship than all defendants.
partial
complete
For diversity purposes, a corporation has two citizenships, which are:
a. _______
b. ________
state of incorporation
principal place of business
For diversity purposes, partnerships have the citizenship of _____
all the partners
The amount in controversy is determined by plaintiff’s ____.
good faith pleading
In achieving the amount in controversy, may Plaintiff aggregate (answer “yes” or “no”):
a. all of Plaintiff’s claims against one defendant?
b. alternate theories of recovery for the same wrong? c. claims of different plaintiffs?
d. claims against different defendants?
Yes
No
No
No
In some cases, a related claim that lacks diversity or federal question jurisdiction may be included. This is called _____.
supplemental jurisdiction
Federal courts traditionally abstain from ____, _____, and ____.
family law
probate
state criminal proceedings
If plaintiff has filed his action in state court, and jurisdiction is proper in federal court, defendant may remove the case to federal court. This is done by filing a ____ in federal court, attaching a copy of _____ and ____ to the state court and all parties.
Notice of Removal
all state court pleadings
giving notice
If there is a _____ defect in the removal, the case must be remanded to state court no matter when the objection is made
jurisdictional
If there is a _______ defect in the removal, the case must be remanded to state court if a ______
procedural
proper and timely objection is filed
State court subject matter jurisdiction is governed by
state law
In state courts, subject matter jurisdiction is designated by _____ and/or _____.
type of case
dollar amount
In Texas, state district courts have ____ over all claims of ___ or more in controversy.
general jurisdiction
$500
Federal courts have ___ jurisdiction over patent claims. Federal and state court share _____ jurisdiction over _____.
exclusive
concurrent
federal civil rights actions
A court has ____ jurisdiction if it is the required forum at the beginning of the case. A court has ____ jurisdiction if it may adjudicate a case only after it has been heard in a lower court.
original
appellate
A Texas state district court has ____ jurisdiction over any dispute involving $500 or more, and ___ jurisdiction over appeals from Texas state agency decisions.
original
appellate
A federal district (trial) court has _____ jurisdiction over appeals from federal administrative agency decisions.
appellate
The United States Supreme Court has ____ jurisdiction over disputes between states.
original
The Rules of Decision Act provides that “____, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as____ in civil actions in the courts of the United States, in cases where they apply.”
the laws of the several states
rules of decision
_____ interpreted the Rules of Decision Act to require federal courts to apply the ____ in cases where state law applied.
Swift v. Tyson
general American common law
Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply _______.
the law of the state in which that federal court sits
_____ coined the “_____,” which provides that the ____ Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.
Guaranty Trust v. York
outcome determinative test
Erie
____ modified the ____, holding that the court should ___ in the case to determine which interests were stronger. ___ further held that one factor of the balancing test is whether the state law in question is _____ outcome determinative. Thus, ___ gives more importance to state laws that absolutely change the outcome of the case.
Byrd v. Blue Ridge outcome determinative test balance state and federal interests Byrd absolutely or definitively Byrd
To determine the content of state law in federal court, the Erie Doctrine directs that the court look to ___ and ___. Persuasive (but not binding) authority is found in ___ and ____. Erie also allows courts to make an ___ as to state law.
state statutes decisions from the state's highest court lower state appellate courts federal court opinions on state law educated guess
The Rules Enabling Act (28 U.S.C. § 2072) provides the United States Supreme Court may enact the _____, provided that no rule may ____ any substantive right.
Federal Rules of Civil Procedure
abridge, enlarge, or modify
The most prominent Rules Enabling case is ____, which resolves the conflict between the Rules Enabling Act and the ____.
Hanna v. Plumer
Erie Doctrine
___ v. Plumer also provides the current version of the ___ Doctrine, holding that if there is no ____ on point, then apply the Byrd test subject to the _____.
Hanna
Erie
Federal Rule of Civil Procedure
twin aims of Erie
Choice of law is the process by which courts determine which _____ law will be applied in a case.
state’s or nation’s
Choice of law rules may be ___ or ____.
statutory
common law
One example of a choice of law statute is Texas Civil Practice and Remedies Code § 71.031, which provides that in wrongful death actions the law of the state ____ will govern.
where the death occurred
One example of a common law choice of law rule is the Texas case of Duncan v. Cessna, which holds that Texas courts will use the “_____” to choose the governing law. This rule applies except where there is a _____, or where the action is based on contract that contains a _____.
most significant relationship test
statutory choice of law rule
valid choice of law clause
In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules of ____
the state in which the federal court sits
In federal court, Plaintiff’s initial pleading is called a ____. It must contain:
a. an allegation of ___
b. a short and plain ___ showing that the pleader is _____
c. a demand for _____
complaint
a. subject matter jurisdiction
b. statement of the claim; entitled to relief
c. judgment
In federal court, defendant’s answer must respond to each paragraph of plaintiff’s complaint with one of the following:
a. _____
b. _____
c. statement that defendant ___
admission
denial
lacks sufficient knowledge to respond
In addition to the foregoing, defendant may plead _____. If defendant fails to plead these, they are ____. Name three examples:
affirmative defenses
waived
contributory negligence
assumption of the risk
fraud
F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a ___, and that the pleading is (1) not being presented for any _______; (2) ____ or a ____ for the extension, modification, or reversal of existing law or the establishment of new law; (3) supported by ____, or will likely be after a reasonable opportunity for discovery. _____ must be warranted on the evidence or based on a reasonable lack of information or belief.
reasonable inquiry improper purpose warranted by existing law nonfrivolous argument evidence fact denials
If plaintiff’s initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a _____ under F.R.C.P. 12(e). This must be filed ____ the Answer.
Motion for More Definite Statement
before
Defendant may use a ___ under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.
Motion to Strike
Defendant should always challenge plaintiff’s Complaint by a _____, under F.R.C.P. 12(b)(6). This allows the court to test the ____ of plaintiff’s claim.
Motion to Dismiss for Failure to State a Claim
legal sufficiency
Defendant may challenge _____ at any time. Defendant must challenge ____ and ____ at the first opportunity or waive them.
subject matter jurisdiction
personal jurisdiction
venue
Two types of counterclaim are ____ and ____. A ____ counterclaim is one related to plaintiff’s claim. If it is not asserted, it is ____.
compulsory
permissive
compulsory
waived
A third party claim is one brought by a defendant against a ____. It is based on ____ liability. ____ may also bring a third party claim in defense of a counterclaim.
new party
derivative
plaintiff
Pleadings may be amended to add new ____, and new ____ or ____.
factual allegations
claims
causes of action
If a pleading adds a new claim that is barred by the statute of limitations, that new claim will be allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the “_____” in Fed. R. Civ. P. 15(c).
doctrine of relation back
the statute of limitations has run if the ____ in Rule 15(c) is satisfied.
balancing test
If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff’s ____.
Motion for Trial Amendment
One exception to the liberal federal pleading rule (“short plain statement of the claim”) is that allegations of ___ must be plead with particularity.
fraud
Until recently, most state courts used code pleading, which required plaintiff to plead _____ relating to every element of his claim.
ultimate facts
Many states have abandoned code pleading, replacing it with ____ pleading requirements based on the ______.
notice
Federal Rules of Civil Procedure
Texas still requires plaintiff to plead ____. However, it may not be necessary in each case to plead every ____.
causes of action
element
Many state courts still permit a _____, with which defendant challenges the ____ of plaintiff’s claim. This is similar to F.R.C.P. 12(b)(6) Motion to Dismiss for Failure to State a Claim. Texas does not permit a demurrer.
demurrer
legal sufficiency
F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that ________ that is the subject matter of plaintiff’s claim. This is known as a _____. If defendant fails to assert such a claim, he is _____ from raising the same claim in a later lawsuit.
arises out of the same transaction or occurrence
compulsory counterclaim
barred
Exceptions to the requirement of asserting the claims discussed in the preceding question include:
a. where defendant _____ of plaintiff’s claims prior to filing an Answer.
b. where the counterclaim has not ____ or ___.
c. where the counterclaim requires an additional party over whom the court _____.
d. where the counterclaim is the subject of _____
e. where plaintiff’s action is not based on ____ over defendant (i.e. an ____ action).
a. wins a dismissal
b. arisen; matured
c. lacks personal jurisdiction
d. another pending action
e. personal jurisdiction; in rem
Permissive joinder allows any party to join ____ against ____.
unrelated claims
existing parties
In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be ____ to the plaintiff’s claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an ____ claim .
related
unrelated
Compulsory parties are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts:
a. Rule 19(a) identifies ____, who must be joined if feasible;
b. Rule 19(b) addresses what must happen when _____.
required parties
joinder is not feasible
F.R.C.P. 20 governs permissive joinder of parties. It permits multiple plaintiffs to join in one lawsuit if
a. each plaintiff asserts any right to relief arising out of the same ____, _____, or series of transactions or occurrences, ____
b. “any question of _____ common to all these persons will arise in the same action.”
Rule 20 also permits ____ to _____ if they meet this test.
multiple plaintiff’s
a. same transaction, occurrence, AND
b. law or fact
one or more plaintiffs
join multiple defendants
Two other requirements for naming parties to a lawsuit are:
a. _____
b. ____
Real Party in Interest
Capacity
Procedural devices for adding multiple parties include:
a.
b.
c.
d.
e.
a. Impleader, or Third Party Action
b. Interpleader
c. Intervention
d. Class Action
e. Shareholders’ Derivative Suit
The scope of discovery, both in Texas and federal courts, is all matters “_____” that are “________.”
not privileged
reasonably calculated to lead to the discovery of admissible evidence
The forms of discovery are: (7)
—interrogatories —requests to produce or inspect —subpoenas duces tecum —oral depositions —written depositions —physical and mental examinations —requests for admission
Privileges shield information from discovery, such as:
—_______
—________
—_______
Discovery exemptions have a similar effect. These include
—__________
—________ (in Texas state courts)
attorney-client privilege
spousal privilege
doctor-patient privilege
attorney work product exemption
client investigatory exemption
The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are _____.
waived
In addition to waiver, the privileges and exemptions may have exceptions that _____.
permit or require disclosure
Devices for dismissal include:
a. ____ Dismissal
b. ____ Dismissal for failure to prose cute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.
c. Dismissal for _____
Voluntary
Involuntary
Failure to State a Claim
A Motion for Judgment on the Pleadings may be filed by _____. In deciding the motion, the court will look only to the _____ to determine if that pleading has stated a ____ or ____.
either plaintiff or defendant
nonmovant’s pleadings
claim
defense
F.R.C.P. 56 provides that for summary judgment, the ___ is on the ____ to show that:
a. there is no _____, and
b. movant is _____.
burden
movant
genuine issue of material fact
entitled to judgment as a matter of law
One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleadings] is that a summary judgment motion may include _____. In addition, the court is entitled to examine other evidence in the _____, such as discovery on file with the court.
evidence
court record
For summary judgment under Rule 56(b) (in favor of the party not having the burden of proof at trial), the movant may meet the first part of the burden (no dispute of material fact) by:
a. ____
b. ____ portions of nonmovant’s essential fact allegations (Adickes)
c. pointing to the record, after a ____, and alleging that non movant lacks sufficient evidence to support an ____ of her case, upon which nonmovant has the____. (Celotex)
a. assuming all of nonmovant’s fact allegations to be true
b. negating
c. reasonable time for discovery; essential element; burden of proof at trial
For summary judgment under Rule 56(a) (in favor of the party bearing the burden of proof at trial), the movant must meet the burden of proof by ____ of the claim or defense
offering evidence to establish each element
Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to____, who may defeat the motion for summary judgment by:
a. _____, or
b. ______.
nonmovant
a. creating a fact dispute
b. showing that the law does not entitle movant to judgment
In deciding the motion for summary judgment, the court must view the evidence in the ______.
light most favorable to the nonmovant
To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which _____. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment.
reasonable minds could differ
Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is whether there is ____ to withstand a motion for ____, that is, sufficient evidence to send the case to a jury.
sufficient evidence
directed verdict
If a party lacks evidence to respond to a motion for summary judgment, that party may seek ____ under Rule 56(f).
additional time
In federal court, the trial issues of law and fact are governed by a _____. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the _____.
PreTrial Order
latest pleadings
The process of questioning prospective jurors is called ____.
voir dire
There are two kinds of challenges to prospective jurors:
____ are based on the court’s ruling that reasonable cause exists to excuse that person from jury service based on a possibility of prejudice against one of the parties, or some other bias in the case.
____ allow the parties a limited number of “strikes” to excuse prospective jurors for no stated reason.
Challenges for cause
Peremptory challenges
Asking the court to order all witnesses other than parties to leave the room is known as ____.
invoking the rule
A defendant may move for the ____ if he has the burden of proof on all the remaining issues.
right to open and close
Under the Seventh Amendment to the United States Constitution, all parties have a right to trial by jury in ___ exceeding ____ in controversy.
cases at common law
$20
Parties have no constitutional right to trial by jury in ___ cases. However, the states may grant the right to jury trial in equity cases.
equity
The right to jury trial is presumed to exist under a federal statute unless that statute _____ the right.
expressly excludes
If a party fails to request a jury within the time allowed by ____, the right to jury trial is ___.
forum law
waived
After all evidence and arguments have been presented, the judge describes the applicable law to the jury in ____. If the judge instructs the jury incorrectly on an issue of law, this is _____ even though it applies to the jury’s function.
jury instructions
appealable
If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the _____
trier of law and fact
As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that “directed verdict” and “judgment notwithstanding the verdict” are both known as “____.”
judgment as matter of law
In a jury trial, at the close of plaintiff’s evidence, defendant may move for a _____ (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence in the _____, a reasonable jury could not find for plaintiff.
judgment as a matter of law
light most favorable to the plaintiff
The judge should ____ the motion for directed verdict if: a. a ____ could find in plaintiff’s favor, or
b. the judge wishes to let the case proceed and consider the question later.
deny
reasonable jury
If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant’s evidence, ____ may move for judgment as a matter of law, which may be granted if, looking at all the evidence favorable to the ____, and only the unquestionable evidence in ____ favor, a reasonable jury could only find for movant.
plaintiff and defendant
nonmovant
movant’s
After the jury has returned its verdict, the losing party may move for _____ (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within___days after entry of judgment. However, movant must have filed a motion for _____ during the trial as a prerequisite.
judgment as a matter of law
28
judgment as a matter of law
After trial, the losing party may file a Motion for New Trial within twenty-eight (28) days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds:
(4)
28
—trial error
—newly discovered evidence
—misconduct
—result contrary to the great weight of the evidence
The Court of Appeals may reverse the trial judge’s granting of a Motion for New Trial only if there was ____ to support the granting of a new trial.
no evidence
Courts may grant a new trial, conditioned on remittitur or additur. ____ orders a new trial unless plaintiff accepts a lesser amount of damages. ____ orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits ____ as a violation of the right to jury trial.
remittitur
additur
additur
A new trial may be granted for newly discovered evidence if the following conditions are met:
— the new evidence was discovered _____
— the new evidence was not discoverable by ____ prior to the first trial
—the new evidence is not ____
—the new evidence will _____
after the first trial
reasonable diligence
merely cumulative
probably produce a new result
An exception to the “reasonable diligence” requirement in the prior question is that even if the new evidence was discoverable by reasonable diligence, a new trial will be granted if to do otherwise would be a ________.
grave miscarriage of justice
Under F.R.C.P. 60(a), a party may correct ____ and other ____ in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on ______.
clerical mistakes
inadvertent errors
newly discovered evidence or fraud
A party may also challenge a final judgment by ____ alleging _____ or ____.
filing a new action
newly discovered evidence
fraud
Thus there are three methods for challenging a judgment based on newly discovered evidence or fraud:
a. (rule 59)
b. (rule 60)
c.
One principle difference between these three is the ____ allowed for filing.
a. Motion for New Trial
b. Motion for Relief from Judgment
c. A New Lawsuit
time
Appellate courts primarily review ____. In order to receive appellate review, there must be plain error that was ____ by a ____.
questions of law
properly preserved
timely objection
Appellant may preserve error by objecting at the time of the error and making known to the court:
a. the ____, or the _____, and
b. the ____ therefor.
a. action desired; objection to the action
b. grounds
Appellate courts may also review the jury’s decision, but only as to the ______, which is also a question of ____.
sufficiency of the evidence
law
____ courts may review the trial judge’s Findings of Fact in a _____. The standard of review is ____.
Appellate
nonjury trial
clearly erroneous
The four procedures for appearing before the Supreme Court are:
a. _____ 28 U.S.C. §§ 1254(1), 1257
b. ______ 28 U.S.C. § 1254(2)
c. _____ 28 U.S.C. § 1253
d. _____ U.S. Const., Art. III 28 U.S.C. § 1251
a. Writ of Certiorari
b. Certification
c. Direct Appeal from decisions of three judge courts
d. Original Jurisdiction
Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are:
claim preclusion
issue preclusion
Another name for preclusion is “_______.”
res judicata
Claim preclusion includes the doctrines of _____ and ___
merger
bar
Merger applies to judgments for ____. It provides that a ____ judgment for plaintiff (a) prevents plaintiff from suing again, except in a collection action on the judgment, and (b) bars defendant’s defenses in an action on the judgment.’
Plaintiff
valid and final
Bar applies to judgments for ____. It provides that a judgment for defendant ______ on the same claim.
Defendant
bars another action by plaintiff
The-elements of claim preclusion are:
a.
b.
c.
a. same claim
b. same parties
c. valid and final judgment
Claim preclusion does not apply to certain actions, including:
a. Dismissal on grounds of _____
b. _______
c. Where preclusion is ____
d. ____ courts (in some jurisdictions)
a. jurisdiction, venue, or party joinder
b. nonsuit without prejudice
c. denied by statute
d. small claims
Issue preclusion is also known as
collateral estoppel
Issue preclusion does not apply to whole lawsuits, but to:
a. issues of _____
b. that were ____
c. that ended in a _____,
d. where determination of that issue was ___ to the judgment, and
e. where the judgment is ____
a. law or fact
b. actually litigated
c. valid and final judgment
d. essential
e. binding on the party being estopped
Issue preclusion no longer requires _____. This is also known as “offensive collateral estoppel.” It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a ____ and (b) had a _______.
mutuality of parties
party
full and fair opportunity to litigate
The Law of the Case Doctrine is another preclusion device that prevents relitigation of the same issues within ______ prior to final judgment.
the same lawsuit
